Date: 20050311
Docket: IMM-2892-04
OTTAWA, Ontario, March 11th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
CONG BANG NGUYEN and THI SANG DO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated March 11, 2004 in which the applicants were found not to be Convention refugees or persons in need of protection.
[2] The principal applicant (applicant) is a 54-year old citizen of Vietnam who fears persecution by the government of Vietnam because of his military service under the previous regime. The applicant's wife bases her application for protection on her husband's claim.
[3] The applicant alleges that from 1969 to 1975 he held positions of rank and responsibility within the army of the South Vietnam Government. Following the fall of that government in April 1975, the applicant was sent to a reeducation camp by the new communist government. He was released in January 1977, and placed under house arrest until 1983. During the period of house arrest, the applicant was required to report to the state police monthly, and to perform community service three days a month. As well, his travel was restricted. The applicant alleges that in 1981 he served three days in prison after having been falsely charged with treason and criticizing authority. Moreover, two hectares of his farming land were confiscated by the authorities. When the applicant resisted the confiscation, his wife and daughter were injured by the police and required medical attention.
[4] In 1995, the applicant visited Canada and the United States for eight months. Upon his return to Vietnam he was debriefed by the police about his stay abroad, required to report to the police on a monthly basis for a period thereafter, and monitored closely by the police.
[5] The applicant returned to Canada in June 2002 with his wife on a visitor's visa. He wanted to make a refugee claim in the Unites States because his military service had been in support of the American effort in Vietnam. However, because he could not make such an application without travelling to the United States, he made a claim for refugee protection in Canada on May 26, 2003. The applicant fears that if returned to Vietnam he would be punished by the government for having claimed refugee protection in Canada. He also claims that his farming licence was revoked as a result of his departure, and that he would not be able to earn a livelihood upon return.
THE DECISION
[6] The Board rejected the applicant's claim on the basis that his fear was not well-founded. In making this determination, the Board relied on the following findings:
· The actions taken against the applicant after the fall of Saigon in 1975 were not relevant to the claim as the applicant had returned to Vietnam voluntarily after visiting Canada in 1995.
· The applicant may have been the victim of harassment but had not been the victim of persecution. He faced questioning and reporting requirements upon return to Vietnam in 1995, however, he continued to live in his home and operate his business until his departure for Canada in 2002. Moreover, his children remained in Vietnam, with the two youngest enrolled in school.
· Although the applicant's business licence had been withdrawn, it was reasonable to conclude that since the licence had been issued to him and not his two sons, the reason for the withdrawal was that the applicant was not there to operate the business. There was nothing to indicate that the applicant could not reapply and obtain a licence upon return to Vietnam.
· Documentary evidence indicated that the United Nations High Commissioner for Refugees (UNHCR) had entered into an agreement with the Vietnamese government and has access to returning Vietnamese who have left the country due to the change in regime. The UNHCR ensures that returning nationals are able to reintegrate without too many unnecessary disturbances from the government. The Board also found that since the applicant was not a political activist or dissident, it was likely he would be treated in the same way as other returning nationals.
ISSUES
[11] The applicant raises the following issues:
1. Did the Board provide adequate reasons for its decision?
2. Did the Board err by finding that the applicant was subject to discrimination and not persecution?
3. Did the Board err by ignoring the documentary evidence that former reeducation camp detainees (who had served in the military of the former government in Vietnam) are still being persecuted?
ANALYSIS
Issue No. 1
Did the Board provide adequate reasons for its decision?
[12] The applicant argues that the reasons provided by the Board are inadequate. The decision amounts to three pages, two of which are a summary of the facts and evidence.
[13] The purpose of reasons is to tell the person concerned why a particular result was reached. Reasons allow the parties to see that the applicable issues have been carefully considered and to effectuate any right of appeal or judicial review. Townsend v. Canada [2003] F.C.J. No. 516 at paragraph 22. The standard for reasons was described by Justice Dawson in Mondoza v. Canada (Minister of Citizenship and Immigration) 2004 FC 687 at paragraph 4 as follows:
...[R]easons are required to be sufficiently clear, precise and intelligible so that a claimant may know why his or her claim has failed and be able to decide whether to seek leave for judicial review. See: Metherian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.). The reasons of the RPD meet this criteria. While brief, the reasons set out in a clear, precise and intelligible fashion the reasons why Mrs. De Torres Mendoza's claim failed.
[14] Upon review of the Board's decision, I am satisfied that the reasons are adequate. The reasons address all of the allegations presented by the applicant and explain with sufficient clarity, precision and intelligibility why the claim failed.
Issue No. 2
Did the Board err by finding that the applicant was subject to discrimination and not persecution?
[15] The applicant submits that having accepted his testimony, it was unreasonable for the Board to conclude that the mistreatment he received from the government amounted to mere discrimination. He states that the detentions, reporting requirements, confiscation of land and revocation of licence are serious and persistent abuses of human rights that are likely to be repeated if returned to Vietnam.
[16] The determination as to whether or not certain conduct amounts to persecution is a question of mixed fact and law that is reviewable on a standard of reasonableness simpliciter. Wickramasinghe v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 601 (T.D.); Machedon v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1331 (F.C.). In my view, the Board's conclusion that the applicant suffered from discrimination as opposed to persecution was reasonably open to the Board on the evidence and the Court's intervention is not warranted.
[17] Most of the incidents cited by the applicant in support of his argument took place twenty years before he made a claim for refugee protection. The Board considered these events but concluded that since the applicant returned to Vietnam in 1995 after an eight-month trip to North America, the incidents were not relevant. In other words, the applicant's voluntary return to Vietnam was inconsistent with a subjective fear of persecution. With respect to the incidents that took place after 1995, the evidence indicates that the applicant and his family continued to live in their home and operate their business until the applicant departed for Canada in 2002. Moreover, the applicant testified that despite the problems he had faced in Vietnam, he came to Canada as a visitor and planned to return home after his stay (see transcript page 13). The reason he changed his mind was the revocation of his farming licence. As discussed earlier, the Board considered the motivation for revoking the farming licence and was not satisfied that it was linked to the applicant's prior military involvement.
[18] In concluding that the applicant was not subject to persecution, the Board considered all of the incidents recounted by the applicant, the subjective fear demonstrated by the applicant as a result of the incidents, as well as the present circumstances of the applicant's family in Vietnam. Based on this evidence, it was reasonably open to the Board to conclude that the applicant faced discrimination and not persecution. The applicant testified that he had adapted to the environment in Vietnam at the time he applied for a passport in 2002 to visit Canada. He testified at page 13 of the transcript:
... you adapted with the environment.
I (this) means that when I was in Vietnam I bend myself to -- with their conditions, so when I ask for the passport (in 2002) I didn't have any problems.
Issue No. 3
Did the Board err by ignoring the documentary evidence that former reeducation camp detainees (who had served in the military of the former government in Vietnam) are still being persecuted?
[19] The applicant states that the Board erred by failing to make reference to those portions of the documentary evidence that are supportive of his testimony. In particular, the Board did not refer to evidence that confirmed that former reeducation camp detainees were being harassed and persecuted by the authorities. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) at paragraph 17, Justice Evans (as he then was) held that:
... the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence".
[20] I have reviewed the documentary evidence and do not agree with the applicant's description of the contents. For example, the United States Department of State Report for Vietnam for 2002 (at page 123 of the Record) states:
Some persons formerly interred in reeducation camps on the basis of association with pre-1975 government continued to report varying levels of discrimination as they and their families sought access to housing, education and employment. Some military veterans of the pre-1975 government still faced economic hardship as a result of past employment restrictions and discrimination, but none were known still to be incarcerated for their activities before 1975.
[21] The report specifically notes "discrimination", as opposed to persecution. Other documentary evidence also cites, at most, " discrimination" being suffered by former internees from reeducation camps. Further, while the applicant states that the United States continues to process immigrants and refugees from Vietnam, including former reeducation camp detainees, a review of the evidence indicates that this is being done under a special resettlement program for Vietnamese returnees as opposed to under general asylum laws. The report also notes that this program is near completion. Finally, evidence that relates to the treatment of dissidents is not relevant to the applicant as he is not a dissident.
[22] In fact, the documentary evidence does not report that former South Vietnamese military officers are being persecuted. This argument is not relevant in any event because the applicant's evidence was that he was able to live, work, and raise his family in Vietnam, by adapting to the environment. Canada may be a preferable place for the applicant compared to Vietnam, but that does not entitle the applicant to refugee status.
[23] For these reasons, the application for judicial review must be dismissed.
[24] Both parties and the Court agree that this case does not raise a serious question of general importance.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2892-04
STYLE OF CAUSE: CONG BANG NGUYEN AND THI SANG DO v. THE MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: CALGARY, AB
DATE OF HEARING: MARCH 7, 2005
REASONS FOR ORDER AND ORDER : KELEN, J.
APPEARANCES:
Ms. Roxanne Haniff-Darwent FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Darwent Law Office FOR APPLICANT
Calgary, AB
John H. Sims, Q.C. FOR RESPONDENT
Edmonton Regional Office
Deputy Attorney General of Canada
FEDERAL COURT
Date: 20050311
Docket: IMM-2892-04
BETWEEN:
CONG BANG NGUYEN and THI SANG DO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER